Law and Society 201 Text Review.docx

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Department
Law and Society
Course
LWSO 201
Professor
Marywyatt Sindlinger
Semester
Fall

Description
Law and Society 201 Text Review Chapter One Introduction  A complex and voluminous set of laws governs our entire existence (registration at birth, speed limits, school attendance, what we buy, the conduct of professors in a classroom, define boundaries of public and private property, defining power relationships, maintain status quo, preserve order)  Not all societies utilize a formal legal system (judges, courts, lawyers, etc.)  80% of people in poor countries can not identify who owns what, addresses can not be verified, and rules that govern property can vary from street to street  Traditional societies rely on customs and tradition and resolve disputes through conciliation or mediation by the village elders  Traditional societies need very little law, because social relations are direct and intimate and everyone shares the same interests (few things to argue about) – so non legal/informal mechanisms of social control are more effective  The more civilized a man becomes, the greater the man’s need for law and the more law he creates  Law is a response to social needs  Oliver Wendell Holmes – every legal system stands in close relationship to the ideas and aims of society. It reflects the ideas, ideals and ideologies that are a part of a distinct “legal culture” – those attributes and behavior that make the law of one society different form another  Sociology and law are both concerned with norms – rules that prescribe the appropriate behavior for people in a given situation  In both law and sociology, the study of conflict and conflict resolution is central, as well as the nature of legitimate authority, social control, human rights, power arrangements and the relationship between public and private spheres and contractual commitments  Sociological Jurisprudence – the study of law and legal philosophy, and the use of its ideas in law to regulate conduct (considers law as it actually is – “law in action” not like the law that appears in books)  Interest in law grew after WWII  Interest in the law isn’t confined to North America – nationally and internationally institutions formed centers to study the interactions between law and society  There are many difficulties of interaction between sociologists and lawyers because: 1 – they don’t talk in the same language (lawyers – “the linguistically challenged procession”), 2 – lawyers need to make decisions on the spot, where sociologists is willing to suspend final judgment on some issues, 3 – differences in professional cultures (lawyers are concerned with resolution and identification of problems and sociologists consider all evidence and approach problems with an open mind towards all sides)  The pronouncements of law are predominantly prescriptive: they tell people how to act and what will happen to them if they fail to act a certain way  In sociology the emphasis is on description: understanding the reasons why certain groups of people act a certain way in situations  Legal thinking, as Vilhelm Aubert explains is different than scientific thinking because: 1 – law is more inclined towards the particular than the general, 2 – law does not establish dramatic connections b/w means and ends, 3 – truth is not nonprobabilistic (something either happened or it didn’t) ; a law is either valid or not valid, 4 – law is past and present oriented and not concerned with future events, 5 – legal consequences valid even if they do not occur, 6 – a legal decision is an all or nothing process with little room for compromise(either win or lose a case)  The lawyer generally sees the law as an instrument to be wielded Conceptualizations of Law  Many diverse definitions of law  Jr. Cardozo defines law as a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged  Oliver Wendell Holmes declares that the prophesies of what courts will do in fact , and nothing more pretentious are what I mean by law” (For Holmes – judges make the law on the basis of past experience)  In both of above the courts play a very important role – pragmatic/practical (non theory based) approaches to law  Max Weber – an order will be called law if it is externally guaranteed by the probability that coercion, to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose  Weber – law is different than customs (rules of conduct in defined situations – no sense of duty or obligation to follow them) and conventions (rules for conduct and they involve a sense of duty) because of three basic features (outside pressure to comply, always involves coercion, carried out by specific individuals)  Weber claims a conventional order lacks specialized personnel for the instrumentation of coercive power  Philip Selznik – authoritative nature of legal rules brings about a special kind of obligation that is not dependent on threat and coercion/force (many laws are simply obeyed because people feel it’s their duty to obey)  Donald Black – law is governmental social control; 4 styles of social control:  1 – penal style of social control: the deviant is viewed as a violator and an offender subjected to punishment (drug pusher)  2 – compensatory style – a person is considered to have a contractual obligation and therefore owes the victim restitution (debtor failing to pay the creditor)  3 – therapeutic style – the deviant’s conduct is abnormal and the person needs help  4 – conciliatory style – social conflict without consideration for who is right or wrong (marital disputes)  Law is to be employed when other forms of social control fail to operate Types of law  Substantive laws – rights, duties and prohibitions administered by courts  Procedural laws – rules concerning how substantive laws are administered, enforced and changed (presenting evidence in court, drawing up a will)  Public law – duties and powers of government acting as government  Private law – governing relationships between individuals (wills, adoption)  Civil law – governs the conduct of individuals (torts – violations of civil statues)  Criminal law – concerned with the definition of crime and prosecution of offenders; a crime against the state – public;  Law in Canada divided into branches:  Constitutional law – branch of public law; determines the political organization of the state and its powers; The Constitution – the supreme law of Canada  Case law – enacted by judges  Statutory law – legislation passed by elected officials in legislative assemblies  Administrative law – created by administrative agencies in the form of regulations, orders, and decisions  Royal prerogative or prerogative powers – residue of discretionary authority that is legally left in the hand of the crown Major legal systems  Romano Germanic System – civil law (Europe)  Code: book of laws  Common law system – judge made law (England)  Socialist Legal System – law must provide for national security, distribute goods on the basis of socialist principles, education – to overcome selfish and antisocial tendencies that were brought about by a heritage of centuries of poor economic organization (Soviet Union)  In a socialist legal system, the role of the court is to apply law not interpret it in their own way; rejects the idea of separation of powers  Islamic legal system – submit to the will of God (Koran and Sunna, judicial consensus, analogical reasoning) Functions of Law  Social control (formal aka law and informal)  Dispute settlement  Social change Dysfunctions of Law  Law exhibits a tendency towards conservatism (precedents/past binding)  Rigidity inherent in its normative framework (universal, general terms)  Restrictive aspects of normative control – law can overstep bounds and control can turn into repression  Discrimination is inherent in the law (Donald Black)  Lack of clarity in some laws; diverse interpretations  Laws being out of date Paradigms of society  Consensus and conflict perspectives – ideal types Options for Sociologists  Dialectical – relating to the logical discussion of ideas  Praxis - wedding of theory and action – their objective is to try to redress deleterious social conditions by mans of legal action  Some sociologists claim their role is to understand, describe and analyze social phenomena in a value free context  Others argue that it’s the responsibility of social scientists to criticize malfunctioning components of the social system Chapter Two  No single theory of law; many (sometimes overlapping) theories Evolution of Legal Systems  Formal, codifies law emerges when a given society becomes so complex that previous regulatory methods of dispute settlement no longer can be dependent on religious and moral sanctions  The more complex the society, the more differentiated the legal system Traditional Legal Systems  Functions of law in these societies is the same as in more advanced societies  Hunting/gathering societies  Common law (made by elders according to a specific situation)  Courts like the police force are temporarily assembled and dispersed as disputes are settled Transitional Legal Systems
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